HERE’S A SOLUTION TO END PIPELINE DEATH BY DELAY
Notwithstanding clause needs to be expanded, writes Ted Morton.
Last week’s Federal Court of Appeal ruling on the Trans-mountain pipeline expansion is another sorry reminder that courts — not elected governments — are now making energy policy in Canada.
The decision’s short-term effects are probably minimal. Following last year’s judicial veto of TMX, the Trudeau government spent 10 months consulting the Indigenous groups affected by the proposed pipeline twinning. Presumably, the government has the documentation to prove it has fulfilled its “duty to consult,” although it remains a mystery as to why the federal lawyers did not include this evidence in their initial submission to the court.
But the longer-term effect is another reminder to the investment community — Canadian and foreign — that energy policy in Canada is no longer made by elected governments, but by a well-connected coalition of activist judges, Indigenous groups and climate change activists — the latter two funded by wealthy anti-oil, anti-pipeline American foundations like Tides and Rockefeller.
Their strategy for blocking new export pipelines is simple: death by delay. Time is money. The more delays, the more expensive the project. So the anti-pipeline coalition files multiple legal challenges to each new pipeline; appeals every loss to a higher court, then starts all over again with a different issue. And it works. The pipeline graveyard is filling up. Northern Gateway and Energy East are dead and buried. Keystone XL and the Line 3 expansion are tied up in U.S. courts.
The Trudeau government’s recently enacted Bill C-69 will only aggravate this condition. It expands the issues that are legally required to be examined by the courts — climate change impact and gender equity (for pipelines!) and makes it easier for climate-change activists to access the courts.
This explains why international energy companies have dumped $40 billion of Canadian investments since 2015; why shares in almost all Canadian oil and gas companies are now trading at one-third or less of their value only 18 months ago; and why Alberta now has the highest unemployment rate and lowest economic growth of any Canadian province.
How did we reach this sorry state of affairs? It’s a long and twisted tale of judicial misinterpretation of Section 35 of the 1982 Constitution Act.
In 1981, the first draft of Section 35 declared that “The aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” The meaning of this sentence was so unclear and potentially so broad that it was immediately opposed by Alberta’s Peter Lougheed and other western premiers. They forced Trudeau to delete this section entirely from the second draft. This deletion was in turn attacked by Aboriginal groups.
So in the third and final version, a compromise was reached. The adjective “existing” was added to the front end of Section 35.
The restrictive intent of this new wording was clear. It entrenched the legal status quo. Section 35 only protected and affirmed Indigenous rights that already existed before 1982. It did not create new rights or invite the courts to begin “discovering” new Aboriginal rights. The restrictive intent of the final wording was so clear that Aboriginal leaders declared “a day of mourning” when the Constitution Act was proclaimed and said that any Indigenous person participating in the celebration would be committing a “treasonous act against the Indian nations and their citizens.”
This “original understanding” did not even last a decade. In its 1990 Sparrow decision, the Supreme Court ignored the “framers’ intent” and reinstituted certain Aboriginal fishing rights that had already been extinguished prior to 1982. The judges justified their decision by invoking the concepts of the honour of the Crown, fiduciary obligation and duty to consult — none of which appear in Section 35 or anywhere else in the Constitution. Who decides what this duty to consult actually means and whether it has been met? The judges, of course.
Sparrow opened the floodgates of Indigenous rights litigation. By the end of 1997, there were over 500 separate Aboriginal cases before the courts. In British Columbia in 1997-98, one-third of all appeal court judges were assigned to Aboriginal rights cases. TMX alone has been the target of 19 different court challenges. No wonder Kinder Morgan gave up.
If Lougheed and the other western premiers who fought for the restrictive wording amendments to Section 35 could see what the courts have done with it, they would be appalled. They understood that Trudeau’s new Charter of Rights gave the federally appointed judges a new policy veto over provincial policies that are otherwise well within provincial jurisdiction. To protect all provinces’ existing law-making powers, they forced Trudeau to add the Section 33 notwithstanding clause before they would sign off on the Charter. But they did not demand that their new notwithstanding power apply to Section 35, because they thought that they had already solved that problem by limiting it to “existing” Aboriginal and treaty rights.
Lougheed’s 1982 solution for unacceptable judicial policy-making points to a solution for the current death-spiral in pipeline policy and energy investment: a constitutional amendment that extends the notwithstanding power to Section 35 decisions. This amendment would not end governments’ duty to consult affected Aboriginal groups. Nor would it take away the ability of Aboriginal groups to challenge the adequacy of such consultation. It would only mean that elected governments — not unelected judges — would have the final say. In other words, a return to responsible government — making policy-makers accountable to the voters/citizens who must bear the consequences of their decisions. How radical is that?
Ted Morton is an executive fellow at the University of Calgary’s School of Public Policy and a former minister of energy and finance in Alberta.
It would only mean that elected governments — not unelected judges — would have the final say.